Why the South African Copyright Bill is not a threat to the duration of copyright.

Author: Johani Maree-Moens

On 21 September 2015, John Kane-Berman caused quite a stir with his article published in the Rand Daily Mail entitled “Copyright bill latest in litany of laws of increasing oppression” – and rightly so. Although fear mongering might be too strong a phrase, it certainly comes close to describing the tone of the article. Although Mr Kane-Berman is right to be concerned about some of the drafting contained in the Copyright Bill, his portrayal of the contents of the Bill is selective.

The Copyright Act 98 of 1978 is currently under revision. The Department of Trade and Industry (DTI) opened the Copyright Bill of 2015 to public comments, the opportunity for which closed in mid September 2015.

The passage of Mr Kane-Berman’s article with which I take issue is the following:

“The 1978 act also provides that ‘copyright is transmissible as movable property by testamentary disposition’ to the author’s heirs. This allows such heirs to continue benefiting from the copyright for a full 50 years after the author’s death.

The amendment bill removes this right. It provides that the “ownership of any copyright whose owner… is deceased shall vest in the state”.

Firstly, it must be said that the above ellipsis is perhaps the most important part of the passage. Those three dots hang heavy as a thundercloud with what they do not say, and a closer examination of the source text provides a flood of context.

Secondly, if the citation of the Bill selected by Mr Kane-Berman were complete, it would in fact be an atrocity, and a violation of South Africa’s international obligations at that. However, the citation is incomplete, and it is hard to imagine that this was unintentional. Given the references to expropriation in the mining context and failure to comply with the International Criminal Court’s recommendations regarding the Sudanese president, it seems evident that these statements are informed primarily by a political agenda rather than a desire to explain developing intellectual property law.

The actual text of the Copyright Bill says the following:

Amendment of section 21 of Act 98 of 1978

25. Section 21 of the principal Act is hereby amended by the addition after subsection (2) of the following subsection:

“(3) Ownership of any copyright whose owner cannot be located, is unknown, or is deceased shall vest in the state”

In its proper context, it is clear from the language of the proposed amendment that the issue it seeks to address is hardly the expropriation of copyright holders’ rights upon their death, but rather the issue of orphan works.

Orphan works are those works whose authors are unknown or unable to be located, thus casting a shadow of legal uncertainty over the copyright, which may or may not subsist in those works. Works may become orphan works for a number of reasons: the author may have chosen for the work to remain anonymous, or to be published under a pseudonym, for example. The British Library estimates that over 40% of all creative works are orphan works. This is a problem because it is unclear whether these works are in the public domain or not, and therefore severely impact the use to which they may be put due to the legal uncertainty involved. Libraries, museums, publishers and authors are reluctant to use orphan works for fear of legal ramifications further down the line. Orphan works can’t be licensed, for example, because the copyright holder is unknown and can neither give permission nor receive a royalty. This effectively locks away these works, which could result in an undesirable chilling effect on education. It is therefore a matter of public interest that the issue of orphan works be dealt with on a policy level, especially in a developing country like South Africa.

Orphan works are a delicate matter that has been the subject of much debate internationally. According to international consensus, a regime should be introduced according to which following a diligent search for the author that proves unsuccessful the copyright of the work will be presumed to vest in the state. To this end the state can then give permission to those seeking to use the work in good faith. Any royalties collected could be held on trust for the original copyright holder. If the original copyright holder comes out of the woodwork, the presumption that the copyright vests in the state would no longer be valid.

The intention behind this provision is clearly to create a regime to deal with orphan works, which is a laudable motive, especially with a view to education and development. The underlying imperative is by no means to usurp the rights of copyright holders.

An author being deceased is not the same as being unknown. The reference to a deceased author in an orphan works provision is out of place. In my opinion the reference to a deceased author in this context is simply poor drafting, or a misunderstanding, but hardly anything more ominous than that. It is very likely that the phrase “or is deceased” will be removed from the final version of the Bill.

At no point does the Bill make further mention about changing the duration of the term of copyright. Even in the unlikely event that the phrase “or is deceased” remains in place in the orphan works provision, it would certainly take a backseat to the straightforward term provisions elsewhere in the Act, especially given South Africa’s international obligations like the Berne Convention and the agreement on Trade Related Aspects of Intellectual Property (TRIPS). Both these international instruments require a minimum copyright term of fifty years after the death of the author, a minimum that is reflected in s. 3(2) of the Copyright Act as it stands today.

It is important to note at this point that South Africa’s adherence to TRIPS is no small matter. Unlike other copyright conventions and agreements, TRIPS includes an enforcement mechanism. Furthermore, all TRIPS members are also members of the World Trade Organisation (WTO), which has its own dispute settlement procedure. In the worst case scenario sanctions may be pronounced against a WTO member who does not adhere to its obligations.

In summary: rest assured, heirs of South African copyright holders – the DTI isn’t coming for your inheritance in the middle of the night.

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